Applicant claims she was
arrested for being a lesbian. She submitted a document entitled "Public
Order Administrative Penalty Verdict." It states that she "has violated
the Public Order Rules by committing homosexual and other indecent activities.
She has exerted a bad moral influence and disturbed the public order."
She was in prison for 15 days and had to pay a fine. Are women being arrested
and punished for being lesbian?

Response:

The RIC was unable to find
information on a "Public Order Administrative Penalty Verdict" and on the
arrest and punishment of women for being lesbian.

The Third Pink Book
states that there are reports of homosexuals in China being imprisoned
on "specious grounds" such as Section 158 of the Penal Code, which punishes
"disturbance against the social order" with up to 5 years imprisonment
(1993). It is not clear from sources available to the RIC whether Section
158 of the Chinese Penal Code has any relation to the document submitted
by the applicant. It is also unclear if Section 158 of the Penal Code is
related to (or the same as) the Penal Code article (discussed below) which
allowed arrests on charges of hooliganism but was removed from the law
in 1997.

General information on the
situation of homosexuals in China follows.

Background

According to a recent BBC
article:

[T]he relaxation of social
controls in China over recent years has given homosexuals greater freedom
to congregate openly in certain bars and parks of major cities1/4 However,
many Chinese gays complain they still face harassment by the authorities,
with meetings frequently raided by police and an official stance that regards
homosexuality as a perversion (7 July 2000).

It wasn't until the 20th
century that homosexuals in China became marginalized and regarded as deviant.
"Since 1949, in an ironic reversal...China, as part of the process of 'modernization,'
[chose] to abandon traditional attitudes for the historical Western view
of homosexuality as a perversion...Under the forty-year rule of the Communist
government, social acceptance of homosexuality has virtually disappeared"
(Ng 3 July 2000).

After coming to power in
1949, the Communist Party under Mao Tse-tung "stamped out anything they
deemed deviant or decadent," and in the late 1960s and early 1970s (during
the Cultural Revolution), gays were subjected to public humiliation and
long prison terms (Reuters 7 July 2000, Agence France-Presse 15 Jan. 2001).
The past 20 years have brought economic reform; a broad trend in Chinese
society toward (and government allowance of) more personal freedom; increasingly
tolerant public attitudes toward gays, lesbians, and bisexuals; and a realization
on the part of the Chinese government that to ignore the gay community
does nothing to ameliorate the growing AIDS problem in the country (Reuters
7 July 2000, Washington Post 24 Jan. 2000). Homosexuality is still
generally taboo in the media, though sources indicate this too is changing
(CSSSM News Digest 3 Aug. 1998).

Internal Chinese government
documents and academic studies state that currently there are about 15
million homosexuals within China's population of 1.2 billion (Reuters 7
July 2000). The vast majority of them still choose to keep their sexuality
a secret, due in part to societal conservatism, strong pressures to marry
and have children, and fear of prejudice, though societal attitudes may
also be liberalizing (Agence France-Presse 15 Jan. 2001, Asiaweek
7 Aug. 1998, CSSSM News Digest 3 Aug. 1998, South China Morning
Post 28 Jan. 2001).

Chinese Law

Homosexuality is not illegal
in China. Private "consensual homosexual acts" were decriminalized in Hong
Kong in 1991 (IGLHRC Dec. 2000), and sodomy was decriminalized in China
in 1997 (it remains illegal in 20 U.S. states) (Washington Post
24 Jan. 2000). In October 2000, however, a Beijing court ruled that homosexuality
was "abnormal and unacceptable to the Chinese public" (Washington Post
24 Jan. 2000).

According to the Hong Kong-based
Information Center for Human Rights and Democracy, the police have "used
a secret 1993 directive, which charged gays with illegal demonstrations
or hooliganism, to close down gay clubs across the country" (Reuters 7
July 2000). "Hooliganism," a term used for anything the Chinese Communist
Party regards as anti-social, could result in dispatch to labor camps without
trial or jail terms of up to seven years (Reuters 7 July 2000, Washington
Post 24 Jan. 2000). The Chinese Society for the Study of Sexual Minorities
(CSSSM)states that the article in the Penal Code, which allowed
for arrest of homosexuals on charges of hooliganism, was expunged during
legal reform in 1997 (26 Oct. 2000). The Washington Post also states
that arrests of homosexuals on charges of hooliganism have "in general
stopped" (24 Jan. 2000). The CSSSM asserts that the more recent police
raids of gay bars, discos, and other establishments "seem to be more financially
than politically motivated, which indicates that the gay community is a
victim more of bureaucratic corruption than of political persecution" (26
Oct. 2000).

The CSSSM also states:

Although gays were arrested
in the name of hooliganism, cases like this drastically decreased since
mid 1980s [sic]. Nowadays offenders are only those who try to engage in
sex in the public area [e.g. public restrooms]. Gay advocacy should theoretically
be allowed by the constitution (3 Aug. 1998).

Although homosexuality is
not illegal in China, gay rights are not protected by law. In December
2000, a senior Chinese government official announced that "it is not the
right time to introduce a law banning discrimination against homosexuals
[in areas such as employment or housing], due to a lack of majority support"
and that though the public had become more open to homosexuality, "it takes
time" and "the Government cannot impose any social values on the public"
(South China Morning Post 13 Dec. 2000). The government has announced
instead that discrimination can be eradicated through education (South
China Morning Post 13 Dec. 2000, 5 Feb. 2001).

While many homosexuals still
choose to remain closeted, the South China Morning Post states that
advocacy and awareness groups for homosexuals are becoming more organized
and are continuing to push the government to recognize them and work with
them toward anti-discrimination legislation (5 Feb. 2001).

Police Raids

Gays and lesbians are vulnerable
to unofficial oppression, police harassment, and arrest for various offences
(Agence France-Presse 15 Jan. 2001, IGLHRC Representative 16 Feb. 2001).
Arrests are especially prevalent during the "strike hard" periods, in which
the government incites the police force nationwide to crack down on organizations
and individuals deemed to be connected with vice and immorality (CSSM
News Digest 16 March 1998). In a March 1997 police raid of the only
gay and lesbian gathering place in Guangzhou in Guangdong province, about
20 people were arrested, and "unconfirmed reports" indicated that they
were charged with "hooliganism" and detained for 15 days (see discussion
on charges of hooliganism above). According to a Dateline article
reprinted in the CSSSM News Digest, "for a gay community which had
grown comfortable with a harassment free police policy in the past few
years, so long as you were not overtly 'out', the1/4 incident came as a
shocking reminder that life in China is still very repressive and quixotic"
(22 March 1997).

On July 3, 2000, 37 gay men
were arrested on charges of prostitution at the Junjie men's beauty and
health center, a gay health spa in Guangzhou that had opened in February
2000. Articles cite the Chinese police as stating that the raid was part
of a July-September nationwide campaign against "social vices" which also
included strikes against gambling, pornography, and illegal drugs (BBC
7 July 2000, CND-Global 10 July 2000). The police said that they arrested
the men at the Junjie beauty and health center because they were prostitutes
and not because they were gay, "which is a voluntary mutual relationship"
(Reuters 7 July 2000).

Current Situation

According to an Agence France-Presse
(AFP) article, "prison terms are increasingly rare but harassment remains
a fact of life, and gay bars and cafes are subject to periodic raids and
closures" (15 Jan. 2001). An owner of a gay bar interviewed for AFP stated
that the police have a "live and let live" attitude toward gay bars that
have the proper paperwork and do not have dancing or floor shows (15 Jan.
2001). Three of Shanghai's most popular gay bars were shut down in 2000
(Agence France-Presse 15 Jan. 2001).

In regards to persecution
of homosexuals in China, the CSSSM states:

The few cases [of persecution]
we have heard happened in the mid 1980s and does not [sic] reflect the
current situation. China has changed so much in the past two decades. Although
gays, lesbians and other sexual minorities are still subject to strong
prejudice, it is not in their best interest to exaggerate the plight or
improvement for any possible political gains (3 Aug. 1998).

Asiaweek states that
in Asia as a whole, the "underlying truth" is that there is "safety in
numbers" for gays throughout the region (7 Aug. 1998). In China, "there
is little overt anti-gay hostility... [and] homosexuals say they do not
fear being picked on by roughnecks in the way they are in the West" (Asiaweek
7 Aug. 1998).

The Washington Post cites
a Chinese doctor who has studied homosexuality in China for over a decade
as stating:

In China, we really don't
have the radical conservatives and the radical liberation activists that
you do in the West. We don't see gays being beaten to death in our country
because of their sexuality. At the same time, we don't have gay and lesbian
parades (24 Jan. 2000).

The Washington Post article,
which features a lesbian wedding in China (unrecognized under Chinese law),
also speaks of slow but increasing Chinese recognition of homosexuality
in their society. At one time, homosexuals were committed by the state
to mental institutions for electric shock treatments (Washington Post
24 Jan. 2001, CSSSM News Digest 26 Oct. 2000). Although homosexuality
is still classified as a mental disorder, "this type of intervention is
rarely enforced today" (CSSSM News Digest 26 Oct. 20000). Though
families and workplaces largely continue to be intolerant, "the state generally
does not prosecute people for homosexuality any more" (Washington Post
24 Jan. 2000).

According to an IGLHRC representative,
blanket statements about safety and openness for homosexuals in China can
not be relied upon. He says that while there is more tolerance for gays
collectively, individual outing can invite persecution because of continuing
strong phobias against gays in Chinese society. Homosexuals are gaining
ground in Chinese society and are eager to let people know they are there
and have rights, yet there is still unofficial oppression in China, and
the police can not always be depended upon for protection (16 Feb. 2001).

This response was prepared
after researching publicly accessible information currently available to
the RIC within time constraints. This response is not, and does not purport
to be, conclusive as to the merit of any particular claim to refugee status
or asylum.